Compliance Issues For Charities & Charitable Gift Planners Part II - Federal Law Compliance

Compliance Issues For Charities & Charitable Gift Planners Part II - Federal Law Compliance

Article posted in Compliance on 1 August 2000| comments
audience: National Publication | last updated: 16 September 2012


The federal government and many states have rules regarding charitable solicitation, filings, registration and other things that charities and charitable gift planners must comply with to ensure lawful operation. Last week, we published Part I of this article, which addressed state law compliance issues. Part II of this article focuses on federal compliance issues affecting charities and charitable gift planners.

by: Emanuel J. Kallina, II, Esquire & Jonathan D. Ackerman, Esquire

Click here for Part I.


The federal government and many states have rules regarding charitable solicitation, filings, registration and other things that charities and charitable gift planners must comply with to ensure lawful operation. Sorting these rules out can sometimes be difficult, particularly when a charity operates in more than one state. Part I of this article provided an overview of the state law compliance area. Part II of this article focuses on federal compliance issues affecting charities and charitable gift planners.

Federal Compliance Issues

Substantiation Rules

Code1 Sections 170 and 6115 and the Treasury Regulations thereunder govern the substantiation rules for charitable contributions.

If a donor fails to comply with the contemporaneous written substantiation requirements of Code Section 170(f)(8) and Treasury Regulation Section 1.170A-13(f) for contributions of $250 or more, the donor may lose his or her charitable income tax deduction. 2 The statement must specify the amount of cash contributed and must describe, but not value, any property other than cash contributed. 3 There is an exception where the charity reports the required information on a return as provided in the Regulations. 4 Transfers to charitable remainder and charitable lead trusts are exempt from the substantiation requirements of Code Section 170(f)(8) but transfers to pooled income funds are not exempt. 5

A charity that knowingly gives a donor a false written substantiation statement may be subject to penalties under Code Section 6701 for aiding and abetting an understatement of income tax liability. Treasury Regulation Section 1.170A-13 includes additional record keeping, appraisal and substantiation rules for charitable gifts, depending on the value of the gift and the type of property involved.

Code Section 6115 requires a charity that receives a quid pro quo contribution exceeding $75 to provide a written statement to the donor informing the donor that his or her charitable income tax deduction is limited to the excess of the contribution over the value of the goods or services provided by the charity. The statement must also give the donor a good faith estimate of the value of the goods and services the charity is providing. 6 Treasury Regulations provide guidance under this Section and include a provision indicating that the charity may use any reasonable methodology for the valuation as long as it is applied in good faith. 7

If the charity fails to provide the required quid pro quo statement, it will be subject to noncompliance penalties under Code Section 6714 unless it can meet the reasonable cause exception. The penalty is $10 for each contribution for which the charity failed to make the required disclosure up to a maximum of $5,000 with respect to a particular fundraising event or mailing. 8 Code Section 170(f)(8) also contains a requirement that quid pro quo be described in order for the donor to obtain a charitable income tax deduction for a contribution of $250 or more.

Filing Requirements for Planned Gifts

Some of the tax and informational returns that may need to be filed include the following:

Individual donors, partnerships and corporations must file Form 8283, Noncash Charitable Contributions, to report certain information about charitable gifts. An individual need only file this Form if his or her charitable income tax deduction for noncash gifts exceeds $500. Depending on the amounts involved, the charity may have to complete an acknowledgment on Form 8283. Form 8283 should be filed with the tax return for the year in which the charitable contribution is made.

A charity may have to file Form 8282, Donee Information Return, to report certain information about dispositions of charitable property within 2 years of the contribution. Form 8282 is due within 125 days following the date of disposition of the property.

Split interest trusts described in Code Section 4947(a)(2), including charitable remainder trusts, charitable lead trusts and pooled income funds, must file Form 5227, Split-Interest Trust Information Return, to report financial activities and determine whether the excise taxes under Chapter 42 of the Code apply. It is due on or before April 15th of the year following the year being reported and must be signed by the trustee or an authorized representative of the trustee. A copy of the trust instrument should be included with the first filing of Form 5227.

Most split-interest trusts described in Code Section 4947(a)(2) have to file Form 1041-A, U.S. Information Return, Trust Accumulation of Charitable Amounts, to report the information required by Code Section 6034 and the Treasury Regulations thereunder. Most trusts, like a non-grantor charitable lead trust, claiming deductions under Code Section 642(c) must also file this Form. Form 1041-A is due by April 15th of the year following the year being reported and must be signed by the trustee or the trustee's authorized representative.

The fiduciaries of most nonexempt charitable trusts described in Code Sections 4947(a)(1) and 4947(a)(2) that have any taxable income during the year, gross income of $600 or more during the year or a nonresident alien beneficiary must file Form 1041, U.S. Income Tax Return for Estates and Trusts, to report income and pay any taxes owed. Form 1041 must be filed by the 15th day of the fourth month following the close of the tax year. If there is no taxable income, a Section 4947(a)(1) trust may be able to file Form 990 or Form 990-PF in lieu of Form 1041.

Form 4720, Return of Certain Excise Taxes on Charities and Other Persons Under Chapters 41 and 42 of the Internal Revenue Code, is filed to report any liability for excise taxes under the applicable provisions of Chapters 41 or 42 of the Code by (i) public charities that have excess lobbying expenditures or that make political contributions, (ii) private foundations, (iii) nonexempt charitable trusts described in Code Section 4947(a)(1) that are treated as private foundations and (iv) split interest trusts described in Code Section 4947(a)(2), such as charitable remainder trusts and charitable lead trusts. Self-dealers, disqualified persons, foundation managers and organization managers who owe any such excise taxes may use the entity's Form 4720 for reporting and paying their excise taxes if they have the same tax year as the entity. If they have a different tax year, they must file their own Form 4720. Generally, entities must file Form 4720 by the due date for filing their Form 990-PF, Form 990 or Form 5227. A self dealer, disqualified person, foundation manager or organization manager with a tax year different from the entity's tax year must file Form 4720 by the 15th day of the 5th month following the close of his or her tax year.

If none of the exceptions apply, nonexempt charitable trusts described in Code Section 4947(a)(1) and tax-exempt entities that are not private foundations and that have normal annual gross receipts of more than $25,000 file Form 990, Return of Organization Exempt From Income Tax (or Form 990-EZ, Short Form), to report the information required by Code Section 6033. Code Section 6104 governs the availability of this Form to the public. Forms 990 and 990-EZ are due by the 15th day of the 5th month following the close of the entity's accounting period.

Nonexempt charitable trusts described in Code Section 4947(a)(1) and tax-exempt entities that are treated as private foundations generally file Form 990-PF, Return of Private Foundation or Section 4947(a)(1) Nonexempt Charitable Trust Treated as a Private Foundation, to report the information required by Code Section 6033. This Form should be filed by the 15th day of the 5th month following the close of the entity's accounting period.

An organization exempt under Code Section 501(a) or 529(a) uses Form 990-T, Exempt Organization Business Income Tax Return, to report liability for the unrelated business income tax or the proxy tax on lobbying and political expenditures. With some exceptions, Form 990-T is due by the 15th of the 5th month following the close of the organization's taxable year.

Penalties for Noncompliance with Filing Requirements

If the required returns are not filed or not adequately completed, penalties may apply unless reasonable cause can be shown. Code Section 6651 governs the failure to file an income, estate or gift tax return or a failure to pay such taxes and Code Section 6652(c) governs the failure to file certain informational returns. For example, if a charity fails to file a complete Form 990 or Form 990-PF to provide the information required by Code Section 6033 by the due date including any extensions, Code Section 6652(c)(1)(A) provides for a penalty of $20 for each day during which the failure continues up to the lesser of $10,000 or 5% of the charity's gross receipts for the year. If the organization's gross receipts exceed $1 million, the amounts increase. If any person fails to comply with the IRS's written demand for such a return pursuant to Code Section 6652(c)(1)(B), the IRS may impose a penalty of $20 per day up to a maximum of $5,000 on such person.

Code Section 6652(c)(1)(C) includes penalties for failures to comply with the public inspection rules. Code Section 6652(c)(2) outlines the penalties for failures to file returns showing the information required by Code Section 6034 for split-interest trusts or trusts claiming charitable deductions under Code Section 642(c).

Other penalty provisions may apply if the failure to file or to give complete and accurate information is willful or fraudulent.

A charity could be subject to a penalty under Code Section 6721(a) if it fails to file a complete and accurate Form 8282.

Disclosure Requirements

Effective as of June 8, 1999, final Regulations9 implement the new disclosure rules which apply only to tax-exempt organizations described in section 501(c) or (d) of the Code and exempt under section 501(a) of the Code (other than private foundations). In general, the "documents" that must be disclosed pursuant to the final regulations include: (i) Forms 1023, 1024, and any supporting documents filed by or on behalf of the organization in connection with an exemption application (but only after the IRS has granted tax exempt status), (ii) the three most recent annual information returns (Forms 990, 990-EZ, 990-BL, and Form 1065) and (iii) all schedules and attachments filed with the IRS. A public charity is not required to identify names and addresses of contributors. Religious or apostolic organizations do not have to disclose their Schedules K-1. 10

An organization must comply with requests for copies made in person, at the location(s) which are required to provide copies, by providing copies that same day and place. In the event an unusual circumstance exists, no later than the next business day following the day the unusual circumstance ceases to exist. If the request is made in writing, the organization must mail the copies within 30 days from the date it receives the request. If an advance payment of a reasonable fee for copying and postage is required, then it must provide copies within 30 days from the date it receives payment. 11

An organization is not required to comply with requests for copies if the organization has made the requested documents "widely available." An organization can make its application for tax exemption and/or its annual information returns widely available by posting the applicable document on the organization's World Wide Web page on the Internet or by having the applicable document posted on another organization's World Wide Web page as part of a database of similar materials, provided that the documents are posted in a format which meets the criteria set forth in the final regulations. An organization utilizing this method must provide individuals who request copies with the World Wide Web address where the documents are available. The final Regulations do not specify any particular format which must be used, but rather provide that the documents must be posted in a format that meet certain criteria. 12

Effective as of March 13, 2000, final Regulations13 implement new rules which extend to private foundations the rules concerning the public disclosure of annual information returns and exemption applications that apply to other exempt organizations. The disclosure rules for private foundations are essentially the same as those for public charities, discussed above. Some differences include (i) clarification of the term "Annual Information Return" to include any return that is required to be filed under Code Section 6033, which for a private foundation, includes Form 990-PF and Form 4720, 14 (ii) disclosure to the general public of the names and addresses of its contributors, consistent with Code Section 6104(d)(3), 15 and (iii) for the purposes of Code Section 6104(d), the terms "Tax-Exempt Organization" and "Private Foundation" include nonexempt private foundations and nonexempt charitable trusts described in Code Section 4947(a)(1) that are subject to the information reporting requirements of Code Section 6033. 16

Private Inurement & Private Benefit

Section 501(c)(3) states that no part of the net earnings of a Section 501(c)(3) organization may inure "to the benefit of any private shareholder or individual." This is known as the "private inurement" test and is generally applicable in the case of "insiders."

Treasury Regulation Section 1.501(c)(3)-1(d)(1)(ii) specifies that a charity must serve a "public rather than a private interest." This is the so-called "private benefit" test. It is broader than the private inurement test because it applies to all individuals, not just to insiders. It is also distinguishable from the private inurement test because it requires a significant or material private benefit, not simply $1 of economic benefit to a private individual.

The Seventh Circuit reversed the Tax Court in United Cancer Council, Inc. 17 ("UCC"), holding that the now defunct charity's net earnings did not inure to the benefit of its outside fundraiser, Watson & Hughey Company and, therefore, did not violate the prohibition against private inurement. Chief Judge Posner stated that the prohibition was "designed to prevent the siphoning of charitable receipts to insiders of the charity, not to empower the IRS to monitor the terms of arm's length contracts made by charitable organizations with the firms that supply them with essential inputs..." Because the Tax Court did not rule on the Service's argument that UCC had conferred a private benefit, the Seventh Circuit remanded the case to the Tax Court for decision on this issue.

Recently, UCC and the IRS entered into a closing agreement resolving all outstanding federal tax issues without further consideration by the Tax Court. The settlement provided, in part, that (i) UCC's exempt status under Code Section 501(c)(3) of the Code be revoked effective January 1, 1986, (ii) the Service will not disallow the deductibility of any charitable contribution made to UCC during the period January 1, 1986 through December 31, 1989 on the ground that UCC was not a qualified recipient of charitable donations, and (iii) the Service approved a new application for exempt status under Code Section 501(c)(3) for UCC effective January 1, 1990.

Intermediate Sanctions

As noted above, a transaction with a charity may result in private inurement or private benefit if a donor or some other private person is deemed to receive some benefit from the transaction. Prior to the enactment of the intermediate sanctions, the only penalty that the Service could impose on a public charity in such cases was revocation of the charity's exemption from federal income taxation. Section 4958 was added to the Code when President Clinton signed the Taxpayer Bill of Rights 2 into law in August of 1996. Proposed Regulations to Section 4958 were issued in 1998. 18

This new provision imposes penalty excise taxes as an intermediate sanction in cases where, among other things, a Section 501(c)(3) public charity engages in an excess benefit transaction with a disqualified person. In simple terms, an excess benefit transaction is one where a disqualified person engages in a non fair-market-value transaction with a charity. A "disqualified person" means any individual who is in a position to exercise substantial influence over the affairs of the organization, whether by virtue of being an organization manager or otherwise. 19 Persons with "substantial influence" include (i) members of the charity's governing body who have voting authority, 20 (ii) the president, chief executive officer and chief operating officer of the charity, 21 and (iii) the treasurer or chief financial officer of the charity. 22

If an excess benefit transaction occurs, Section 4958 imposes a two-tiered approach to punish disqualified persons: A 25% tax followed by a 200% tax if the excess benefit situation is not corrected. Organization managers of a charity who knowingly participate in an excess benefit transaction can be liable for a 10% tax. 23 There is a rebuttable presumption that compensation is reasonable if the transaction is approved by the charity's governing body or committee which is "composed entirely of individuals who do not have a conflict of interest with respect to the arrangement or transaction"24 who (i) "obtained and relied upon appropriate data as to comparability prior to making [their] determination," 25 and (ii) "adequately documented the basis for [their] determination concurrently with making that determination." 26

Unrelated Business Income Tax

If a charity incurs unrelated business taxable income, the charity must pay income tax on the unrelated business taxable income. 27 A charitable remainder trust that incurs unrelated business taxable income loses its tax-exempt status in that taxable year so unrelated business taxable income could be particularly devastating in a year when an appreciated asset is sold. 28

Although a term of art, unrelated business taxable income generally means income earned from the active operation of a business enterprise. In general, passive income, such as interest, dividends, rents from real property under certain circumstances, certain royalties and gains from a capital asset do not constitute unrelated business taxable income, so long as debt is not incurred to acquire those assets. 29 The incurrence of any debt by a charitable remainder or charitable lead trust generally is very dangerous. For instance, no investments should be acquired through the incurrence of "margin" debt and as a general rule, no asset subject to debt should be contributed to such a trust. In addition, the distributions from certain partnerships, which incur (or may incur) debt, may also constitute unrelated business taxable income.


In addition to the private foundation excise taxes that may apply under Chapter 42 and the failure to file and failure to pay penalties noted above, charities could also be subject to other penalties under the Code, including the abusive tax shelter penalties, the accuracy-related penalties, the return preparer penalties and various criminal penalties.

Code Section 6700 imposes a civil penalty for directly or indirectly promoting abusive tax shelters equal to the lesser of $1,000 or 100% of the gross income derived by the person from the activity. Specifically, the penalty applies to a person organizing, assisting in the organization of or participating in the sale of a partnership or other entity, an investment plan or arrangement or any other plan or arrangement and knowingly making or furnishing (or causing someone else to make or furnish) a false or fraudulent statement as to the allowability of a deduction, credit, exclusion or some other tax benefit with respect to holding an interest in or participating in such entity, plan or arrangement or that constitutes a gross valuation overstatement.

Code Section 6701 imposes a civil penalty for aiding and abetting understatements of tax liability in the amount of $1,000 (or $10,000 if it involves the tax liability of a corporation). As noted above, providing a false Code Section 170(f)(8) substantiation statement to a donor may subject a charity or its representatives to the aiding and abetting penalty under Code Section 6701. In fact, the IRS applied, in its Fiscal Year 2000 Continuing Professional Education Handbook, these penalties to a charitable gift. 30

The Code includes several accuracy-related penalties that could be imposed on charities with respect to their tax returns. Code Section 6662(a) imposes a 20% penalty on the portion of an underpayment of tax attributable to a negligent disregard of rules and Regulations, a substantial understatement of income tax, a valuation understatement for estate or gift tax purposes, a substantial valuation misstatement or a substantial overstatement of pension liabilities. The penalty is 40% if there is a gross valuation misstatement.

Negligence is defined as any failure to make a reasonable attempt to comply with the provisions of the Code and the term disregard includes any careless, reckless, or intentional disregard. A substantial understatement of income tax occurs when the amount of the understatement for the taxable year exceeds the greater of 10% of the tax required to be shown on the return for the taxable year, or $5,000. A substantial understatement of estate or gift tax occurs when the value of any property claimed on any return for tax imposed by Subtitle B of the Code (the estate and gift tax provisions) is 50% or less of the amount determined to be the correct amount of such valuation.

Code Section 6664(c)(2) provides that the reasonable cause exception only applies to substantial or gross valuation overstatements with respect to charitable deduction property if the claimed value of the property was based on a qualified appraisal made by a qualified appraiser and the taxpayer made a good faith investigation of the value of the contributed property. In addition to these accuracy-related penalties, a civil fraud penalty equal to 75% of the underpayment is imposed under Code Section 6663(a) if any part of any underpayment of tax required to be shown on a return is due to fraud. Fraud means fraud with intent to evade tax. The Service has the burden of proving a taxpayer's fraud by clear and convincing evidence.

A variety of penalties may also apply to tax return preparers. Generally, a preparer is defined as anyone who prepares or employs someone to prepare all or a substantial portion of a tax return or claim for refund for compensation. Under certain circumstances, if advice and information furnished to a taxpayer or another return preparer is so substantial that it results in the actual return preparation being merely ministerial, the person who provided the advice and/or information may be treated as a return preparer even though he or she may never have seen the actual tax return. A fiduciary of a trust may prepare a return for the trust without being considered a return preparer. Code Section 6694 penalizes income tax return preparers who knew or reasonably should have known that a position causing an understatement of liability on a return or a claim for refund does not have a realistic possibility of being sustained on its merits. Exceptions apply if the position was properly disclosed and was not frivolous or there was reasonable cause for the understatement and the preparer acted in good faith. Code Section 6695 penalizes income tax return preparers who fail to comply with certain requirements, such as the requirement to sign the return. The abusive tax shelter penalties may also apply to return preparers.

In addition to the civil penalties described above, the Code also includes various criminal penalties. Code Section 7201 penalizes attempts to evade or defeat taxes. Code Section 7202 penalizes the willful failure to collect or pay over tax. Code Section 7203 penalizes the willful failure to file a return, supply information or pay tax. Code Section 7204 penalizes the failure to provide employees with wage statements. Code Section 7205 penalizes the filing of a fraudulent exemption certificate or failure to supply required information. Code Section 7206 penalizes the providing of any fraudulent or false statements on any document that contains a written declaration that it is made under penalties of perjury. Code Section 7207 penalizes the filing of fraudulent returns, statements or other documents. Code Section 7215 penalizes the failure to separately account for collected taxes.

Philanthropy Protection Act of 1995

The Philanthropy Protection Act of 199531 codifies certain exemptions from the federal securities laws by amending the Investment Company Act of 1940, the Investment Advisors Act of 1940, the Securities Act of 1933 and the Securities Exchange Act of 1934. A number of types of charitable gifts, including charitable gift annuity contributions, are usually held in a common fund by the recipient charity. Essentially, this Act exempts these common funds and the charities' fund-raising representatives from the securities laws as long as no commissions are received. Written disclosures about the operation of the funds must be provided to the donors within 90 days from the enactment of the Act or at the time of any contributions, whichever is later. 32

Charitable Gift Annuity Antitrust Relief Act of 1995

The Charitable Gift Annuity Antitrust Relief Act of 199533 provides that it is not unlawful under the antitrust laws and state laws that are similar to the antitrust laws for two or more Code Section 501(c)(3) entities to use or agree to use the same charitable gift annuity rates. 34

Charitable Donation Antitrust Immunity Act of 1997

The Charitable Donations Antitrust Act of 199735 amends the Charitable Gift Annuity Antitrust Relief Act of 1995. As amended, the Act gives immunity from being sued under the antitrust laws to any person involved in "setting or agreeing to rates of return or other terms for, negotiating, issuing, participating in, implementing, or otherwise being involved in the planning, issuance, or payment of charitable gift annuities or charitable remainder trusts...." This immunity includes the "right not to bear the cost, burden, and risk of discovery and trial...." The Act applies retroactively as well as prospectively. In addition, the Attorney General was directed to study and issue a report within 27 months summarizing the impact of this Act on markets for noncharitable annuities, charitable gift annuities and charitable remainder trusts. 36

Tax Relief Extension Act of 1999

Tax Relief Extension Act of 199937 added provisions to Code Section 170 disallowing charitable deductions for any transfers to a charity if in connection with the transfer, the charity directly or indirectly pays any premium on a personal benefit contract with respect to the transferor or if there is an understanding that any person will directly or indirectly pay such a premium. A personal benefit contract is defined to include an annuity contract if any direct or indirect beneficiary under the contract is the transferor, any member of the transferor's family or any other person designated by the transferor. 38

However, if a transfer to a charity causes a charity to incur an obligation to pay a charitable gift annuity and the charity purchases an annuity contract to fund the obligation, the persons receiving annuity payments under the charitable gift annuity will not be treated as indirect beneficiaries under the contract so long as the charity possesses all incidents of ownership under the annuity contract, the organization is entitled to all payments under the contract and the timing and payments under the contract are substantially the same as the timing and amount of the payments to each such person under the charitable gift annuity obligation. 39


It is clear that donors, charities and charitable gift planners have to be aware of the various state and federal compliance requirements and can be subject to penalties for failure to do so. Thus, these rules should be considered prior to or during the gift planning process rather than as a post-gift afterthought.


  1. All references to the Code are to the Internal Revenue Code of 1986, as amended from time to time.back

  2. I.R.C. §170(f)(8)(A).back

  3. I.R.C. §170(f)(8)(B).back

  4. I.R.C. §170(f)(8)(D).back

  5. Treas. Reg. §1.170A-13(f)(13).back

  6. I.R.C. §6115(a)(2).back

  7. Treas. Reg. §1.6115-1.back

  8. I.R.C. §6714(a).back

  9. T. D. 8818, 1999-17 I.R.B. 3.back

  10. Treas. Reg. §301.6104(d).back

  11. Id.back

  12. Id.back

  13. T.D. 8861, 2000-5 I.R.B 441.back

  14. Id.back

  15. Id.back

  16. Id.back

  17. United Cancer Council, Inc. v. Commissioner, 165 F.3d 1173 (1999).back

  18. REG-246256-96, 8/4/98.back

  19. I.R.C. §4958 and Proposed Regulations §53.4958-3(a), (b)back

  20. Proposed Regulations §53.4958-3(c)(1).back

  21. Proposed Regulations §53.4958-3(c)(2).back

  22. Proposed Regulations §53.4958-3(c)(3).back

  23. I.R.C. §4958 and Proposed Regulations §§53.4958-1, -4, -5.back

  24. Proposed Regulations §53.4958-6(a)(1).back

  25. Proposed Regulations §53.4958-6(a)(2).back

  26. Proposed Regulations §53.4958-6(a)(3).back

  27. I.R.C. §511(a).back

  28. See I.R.C. §664(c) and Treas. Reg. §1.664-1(c).back

  29. See I.R.C. §§512, 513 and 514.back

  30. IRS CPE FY 2000, "Application of IRC 6700 and IRC 6701 to Charitable Contribution Deductions," by Michael Seto, David Jones and Gerry Sack.back

  31. Pub. Law 104-62.back

  32. Id.back

  33. Pub. Law 105-63.back

  34. Id.back

  35. Pub. Law 105-26.back

  36. Id.back

  37. Pub. Law 106-170.back

  38. I.R.C. §170(f)(10).back

  39. Id.back

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